On 23 June, the Crimes Amendment (Murder of Police Officers) Act 2011 (NSW) commenced, inserting a new s 19B into the Crimes Act 1900. Section 19B(1) of that Act now provides that a court must impose a sentence of life imprisonment without the possibility of parole for the murder of a police officer if the murder was committed:

(a) while the police officer was executing his or her duty, or(b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder:(c) knew or ought reasonably to have known that the person killed was a police officer, and(d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers.

The provision does not apply to offenders under 18 years of age or suffering a significant cognitive impairment (not being temporary self induced impairment) at the time of the murder.

There was strong opposition to the introduction of the legislation, with the NSW Bar Association and Law Society both purportedly rejecting it. These positions were outlined by Paul Lynch MP in debate in the Legislative Assembly on 2 June 2011, where he described the scheme would lead to unjust outcomes, breach basic principles of justice, that it removed any incentive for offenders to plead guilty and for co-accused to cooperate with police. The Law Society further argued the Bill may cause suspects to take desperate steps to avoid apprehension.

The government’s stated reason for introducing the legislation was an apparent need to provide a greater deterrent to people who may consider harming a police officer.

It is questionable whether such a deterrent is necessary, given the pre-existing scheme. Under s 19A(1) of the Crimes Act 1900, people convicted of murder are already liable for life imprisonment, and pursuant to s 61(1) of the Crimes (Sentencing Procedure) Act 1999, that sentence is mandatory where the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

Further, the same act already provided for a 25-year standard non-parole period for murder of a police officer (Part 4, Division 1A) and provides that where a victim of an offence is a police officer that is an aggravating factor to be taken into account on sentence (s 21A(2)(a)).

If the proper and sole function of our criminal justice system is to deal harsh penalties to people who transgress the bounds of acceptable behaviour, then mandatory sentencing would do that well. Our criminal justice system, however, does not aspire to such a draconian regime. In Palling v Corfield (1970) 123 CLR 52 at 58 Barwick CJ said:

It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.

NSW has removed the ability of the Court to make that endeavour for people convicted of a very serious crime.

JAMES LEAVER studies law at the University of Technology, Sydney, though he is more often found on Twitter masquerading as @lexawkward.